CAAFlog » Court-Martial News

Last term, in United States v. MacDonald, 73 M.J. 426 (C.A.A.F. Aug. 27, 2014) (CAAFlog case page) CAAF unanimously reversed a premeditated murder conviction after concluding that the military judge’s failure to give an involuntary intoxication instruction regarding the appellant’s use of the smoking-cessation drug Chantix was error that was not harmless.

In a McClatchy report available here, it appears that the parties have reached a pretrial agreement in the case:

The promising young soldier who killed a Fresno, Calif., native in a Fort Benning, Ga., barracks could eventually regain his freedom, under a new plea agreement.

In a case that ravaged several families, while it raised provocative questions about the smoking cessation drug Chantix, Army Pfc. George D.B. MacDonald has agreed to plead guilty to the unpremeditated murder of Pvt. Rick Bulmer, according to relatives and other informed individuals who declined to be identified in order to talk about the case.


Associated Press (via the Washington Post) story here. All of our prior coverage here.

Sen. Clair McCaskill added and amendment to the long stalled human trafficking bill that requires. Coverage here (St. Louis Post Dispatch). The predecessor of the amendment, the Military Sex Offender Reporting Act of 2015, requires SecDef to report qualifying offenders from courts martial to DOJ for inclusion on he National Sex Offender Registry. 

More coverage of the PVT Jeremiah Hill court martial here and here (, focusing on the accused’s friends’ testimony about the night of the murser outside JBLM.  The trial continues today. 

A Joint Base Lewis-McCord soldier testified in his court-martial yesterday that he killed a fellow soldier in self-defense in the nearby town of Lakewood.  Private Jeremiah Hill testified that he stabbed Spc. Tevin Geike after Geike pulled out a knife and cut Hill when he tried to take it from him.  Hill’s companions on the night of the murder also testified but distanced themselves from Hill’s actions.  Hill faces life in prison without the possibility of parole if he is convicted of the murder.  Full report from the Tacoma News Tribune here.

The FY 2016 NDAA markup continues the trend of military justice “fixes.”  Here is the HASC Subcommittee on Military Personnel Markup containing a variety of provisions focused on dealing with issues related to sexual assault.  The current markup includes sections addressing retaliation against victims and witnesses to sexual assault and improved response to sexual assault of male members of the armed forces.  The markup schedule is here.

Of the two charges preferred against Sergeant Bergdahl, the first is desertion. But the desertion charge against Bergdahl is special. It does not allege that Bergdahl left his unit with the intent to remain away permanently – a typical desertion charge and a violation of Article 85(a)(1). Rather, it alleges that he left his unit “with the intent to shirk important service and avoid hazardous duty” – a less common violation of Article 85(a)(2):

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

(emphasis added).

Article 85 of the UCMJ is based in part on Article 28 of the Articles of War, which was modified in 1920 to include the language that is now found in Article 85(a)(2). See 41 Stat. 787 (1920). An early case decided by the Court of Military Appeals provides meaningful context:

Desertion with intent to avoid hazardous duty – by its very terms – connotes an absence without leave the prompting for which is a specific intent entertained by the offender to avoid the hazardous duty present or in prospect. As a matter of law, the offense is not committed by reason of a naked unauthorized absence, without more, from a unit engaged in hazardous duty. . . . In terms of legal distinction it is manifest that desertion with intent to avoid hazardous duty is not identical with absence without leave from a unit engaged in hazardous duty. Instead, the entertainment of a particular purpose lies at the very heart of the desertion offense.

United States v. Apple, 10 C.M.R. 90, 91 (C.M.A. 1953) (emphases omitted). And so, to convict Sergeant Bergdahl of the charged offense of desertion, the Government needs to prove that he had the specific intent to either avoid hazardous duty or to shirk important service, such duty or service being “combat operations,” “guard duty,” or “combat patrol duties.”

To this end, however, Bergdahl’s own words may doom him. This CNN report states that:

Sgt. Bowe Bergdahl told the military he left his unit in eastern Afghanistan in July 2009 intending to walk to the nearest U.S. military outpost to report wrongdoing, believing he could not trust his own commanders to deal with his concerns, according to sources familiar with the Army investigation.

And Bergdhal’s attorneys sent a letter on March 2, 2015, asserting that:

While hedging its bets (n.347), the [Army’s investigative] report basically concludes that SGT Bergdahl did not intent to remain away from the Army permanently, as classic “long” desertion requires. It also concludes that his specific intent was to bring what he thought were disturbing circumstances to the attention of the nearest general officer.

Letter at 7 (pages unnumbered numbered at the top; see linked PDF at 8). Of course, it is meaningless that Bergdahl did not intend to remain away permanently. Bergdahl is charged with so-called “short” desertion, not “long” desertion. See Alfred Avins, A History of Short Desertion, 13 Mil.L.Rev. 143 (1961) (available here).

Yet if Bergdahl truly intended to make a report to the nearest general officer (after traversing southeastern Afghanistan alone, on foot, and seemingly unarmed), that doesn’t prevent a conviction for desertion. In fact, it might guarantee his conviction, because Bergdahl will be deemed to have intended the natural and probable consequences of his actions, and his ulterior motives are likely irrelevant.

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Time has posted a cleansed copy of the Bergdahl charge sheet online: it’s available here.

The specifications read:

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, on or about 30 June 2009, with the intent to shirk important service and avoid hazardous duty, namely: combat operations in Afghanistan; and guard duty at Observation Post Mest, Paktika Province, Afghanistan; and combat patrol duties in Paktika Province, Afghanistan, quit his place of duty, to wit: Observation Post Mest, located in Paktika Province, Afghanistan, and did remain so absent in desertion until on or about 31 May 2014.

SPECIFICATION: In that Sergeant Robert (Bowe) Bowdrie Bergdahl, United States Army, did, at or near Observation Post Mest, Paktika Province, Afghanistan, on or about 30 June 2009, before the enemy, endanger the safety of Observation Post Mest and Task Force Yukon, which it was his duty to defend, by intentional misconduct in that he left Observation Post Mest alone; and left without authority; and wrongfully caused search and recovery operations.

Our continuing coverage of the Bergdahl case is available here.

Click read more to see video of the Army’s official statement.

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In what I believe is the first crisis that threatens to shake up the military’s nascent victims’ counsel programs, the Marine Corps Times reports here about an investigation into an allegation that a Marine Corps victims’ legal counsel counseling a victim/client to destroy evidence:

The head of the Marine Corps’ Victims’ Legal Counsel program in Japan is at the center of a legal probe after allegedly instructing a client to destroy documentation relevant to a case.

Maj. Chantell Higgins, a 15-year officer and judge advocate who is serving as regional special victims’ counsel for Legal Services Support Pacific in Okinawa, Japan, is being investigated by the Naval Criminal Investigative Service, according to a Marine official. The official spoke on the condition of anonymity as he was not authorized to discuss the case.

NCIS officials confirmed the existence of an investigation, but said they could not comment on the case as the probe was ongoing.

The investigation is centered on allegations that Higgins instructed a victim she was advising in an active sexual assault case to destroy information on a personal cellphone that was relevant to the case, but may have reflected negatively on the victim, according to several sources in the Marine Corps’ legal community who are familiar with the case.

While not a court-martial, this prosecution is notable. Bloomberg report here. NY Times report here. The NYT report states:

Mr. Petraeus has agreed to plead guilty to one count of unauthorized removal and retention of classified material, a misdemeanor. He is eligible for up to one year in prison but prosecutors will recommend two years of probation and a $40,000 fine.

Interesting developments in the Hasan case which should be proceeding to post-trial review of  his death sentence.  Here is a Stars & Stripes story about an upcoming hearing to address post-trial matters.  And here is another story (belatedly, its from Oct. 2014) about some crazy writing of the confined former Major.

Update: According to this Military Times report by Michelle Tan and Andrew Tilghman, “the Army says there is no truth to media reports claiming a decision has been made to charge Sgt. Bowe Bergdahl with desertion.”

A number of news outlets are reporting that Army Sergeant Bowe Bergdahl, who was held by the Taliban for a half-decade before being released in exchange for five Guantanamo prisoners, has been charged with offenses related to his capture.

According to this Reuters / NBC report:

U.S. Army Sergeant Bowe Bergdahl, who disappeared from his base in Afghanistan in 2009 but was released last year in a prisoner swap with the Taliban, will be charged with desertion, according to NBC.

The television network, citing senior defense officials, said the charges could come within a week.

Reuters could not immediately confirm the report, and Bergdahl’s attorney was not immediately available for comment.

But according to this report from the UK’s Daily Mail, Sergeant Bergdahl has already been charged:

Speaking on Fox News’s The O’Reilly Factor, [retired Lieutenant Colonel Tony Shaffer] said: ‘His attorney was given what we call a charge sheet. A charge sheet is results of the investigation listing out the articles of the Uniform Code of Military Justice that have been violated. The key violation is desertion. And this has been done. The decision has been made. Let me be very clear. As a corporate entity, the Army has decided that they want to pursue Bergdahl for this violation.’

Sgt. Bergdahl was captured by the Taliban after he left his unit without permission in 2009. 

And here is the video of the report on The O’Reilly Factor:

You can read all of our coverage of the Bergdahl case here.

Thanks to reader tips, I can provide the following links to news reports of the court-martial conviction of Army Major Erik Burris, formerly the Chief of Justice for the 82nd Airborne Division.

WNCN (a North Carolina NBC affiliate) reports here that:

The court-martial of United States v. Major Erik J. Burris concluded after six days of proceedings. Burris, a former 82nd Airborne Division chief of justice, was found guilty two specifications of rape, forcible sodomy, four specifications of assault and disobeying an order from a superior commissioned officer.

The court-martial found Burris not guilty of four specifications of assault, two specifications of sexual assault, two specifications of forcible sodomy and two specifications of communicating a threat.

Burris pleaded not guilty to all charges.

He was sentenced to forfeiture of all pay and allowances, 20 years confinement and dismissal from the service.

The Fayetteville Observer (a daily newspaper) has this report, with no significant additional details. Additionally, there is this Associated Press report, also with no significant additional details.

I believe that our only prior coverage of this case was in this April 2014 post, where I noted this March 2014 report from Fox40 Sacremento that appears to include details from a press interview of Major Burris. There was also (briefly) some significant discussion of the results of the court-martial in this week’s TWIMJ post.

Thanks to all readers for the tips. I plan to update this post with any significant new developments.

Update 1: The official news release from the Fort Bragg Press Center is available here. It is identical to the WNCN report quoted above.

Update 2: Here is a rather unflattering (to the military justice system) Associated Press report about the case, with references to the Sinclair case.

Did anyone catch the PBS Newshour piece on “How military sex offenders fly under the radar after returning to civilian life“?  Discusses the disconnect between sex offender registries and court-martialed sex offenders.

The murder trial at Ramstein is underway.  Wednesday featured a videotaped confession by the accused, Air Force Staff Sergeant Sean Oliver, according to Stars and Stripes, here. Oliver is charged with the murder of Navy Petty Officer Dmitry Chepusov.  The “four hours of video [was] recorded during an interview of Oliver by Air Force special agents at Ramstein Air Base in late December 2013. The interview was conducted five days after German police pulled Oliver over during a traffic stop and found Chepusov dead in his car’s passenger seat.”

Fat Leonard (aka Leonard Francis), the head of Singapore based logistics firm Glenn Defense Marine Asia who ensnared several officers in a bribery scandal, will plead guilty today before a US Magistrate in San Diego, here (San Diego Union-tribune).

A human interest piece on the Navy Victim’s Legal Counsel program from S&S here.

Reps. Duncan Hunter, R-Calif.; Ryan Zinke, R-Mont.; and Matt Salmon, R-Ariz., have taken an interest in the convening authority action in 1stLt Clint Lorance’s case here (Army times).  Lorance was convicted and sentenced by a court-martial in August 2013 to 20 years in prison for ordering his platoon to open fire on two Afghan men in July 2012. Prosecutors contended that the officer violated ROE and that the men had not demonstrated hostile intent. New evidence included in a clemency petition to the CG of the 82nd Airborne deals with the status of the two men that were shot as potential insurgents/jihadists.  Prior coverage here and here.  Now if other members of Congress have their way, will this portion of the system even be available?

Five more Gitmo detainees were released the Pentagon announced on Wednesday, USA Today report here.  The report states that, “All five were captured in Pakistan and detained by the U.S. as suspected al-Qaeda fighters. U.S. officials determined it was no longer necessary to detain them but decided they couldn’t be sent to Yemen because of instability there.”

Here is the Army News Service’s take on the FY2015 NDAA Mil Jus changes. It is a tad better than the Military Times coverage we posted last week. The article includes observations from Lt. Col. John Kiel Jr., chief of policy branch, criminal law division, Office of the Judge Advocate General.

The Chairman of the Joint Chiefs of Staff said Commander US Forces Command is the potential convening authority in the Sergeant Bergdahl case, here (Military Times).  General Dempsey said he expects a decision of disciplinary action soon, but stayed away from any appearance of UCI by saying anything more. Bergdahl could face court-martial for allegedly leaving his post in Afghanistan before being captured and held by Taliban sympathizing militants from the Haqqani network.

I was just reminded that DoD’s Judicial Proceedings Panel (JPP) has a hearing this Friday, see here.  The Dec. 16, 2014 meeting of the JPP featured appearances by all the service judge advocates.  See speaker bios here and transcript here.  Colonel John Baker, a friend o’ the blog, appeared on behalf of Major General Ewers.

More on 1stLt Lorance’s quest for a new trial from Army Times, here.  Prior coverage here. Update:  Here is the latest RCM 1107 memorandum submitted by Lorance’s counsel, courtesy of his counsel.

A not guilty plea in the Staff Sergeant Sean Oliver murder trial in Germany, here (S&S).  Prior coverage here.

Speculation abounds over what the Army will do with the Bergdahl case.  See coverage here (Killeen Daily Herald) and here (Killeen Daily Herald coming to the opposite conclusion) to link a few. Prior coverage here, here, and here. For those in Taliban custody for the last year, Sergeant Bergdahl was returned to US forces in May 2014 from Taliban/Al Queada custody in a prisoner swap of sorts, see coverage here (NYT) and here (WSJ).  But most of the coverage of the swap for Bergdahl, see e.g. WaPo here, focused on the fact that Bergdahl allegedly walked off his post in Afghanistan before being captured by insurgents.

Military Times coverage of the FY2015 NDAA changes to military justice, here, still misinterpreting the 26,000 estimate in DoD reports. I know people at Military Times read this blog. C’mon man, try to at least describe it correctly.

AF Staff Sergeant Sean Oliver goes on trial Monday, Jan. 12, 2015 for the alleged premeditated murder of AFN reporter Petty Officer 2d Class Dmitry Chepusov, S&S report here. Oliver faces LWOP for pre-med murder rather than the death penalty after the military made concessions on the DP to o rain evidence from German investigators. Oliver was arrested by German authorities with Chepusov’s body in the passenger seat of his car. Prior coverage here and here.